Pesticide permitting fiasco nears deadline

In that case, farmers could face potentially catastrophic financial liability. Fines for those found to be out of compliance could reach $37,500 a day – enough to put most producers out of business quickly.

NAWG | Oct 07, 2011

Key members of Congress are quickly looking for solutions to a pesticide permitting debacle set to hit farmers and other users of crop protection products at month’s end.

That problem was created by a January 2009 Sixth Circuit Court decision saying pesticide discharge is a point source of pollution subject to additional regulation under the Clean Water Act.

This means agricultural producers seeking to control aquatic plant pests, urban public health officials seeking to control disease-spreading mosquitoes and others would have to apply for National Pollutant Discharge Elimination System (NPDES) permits to use products already regulated and permitted under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) – spending tens of millions of dollars without adding any environmental benefit.

The decision has been stayed twice to allow time for government agencies to implement it, though regulators at the state and national levels remain uniformly unprepared to review and issue permits for an estimated 5 million applications annually.

A draft pesticide general permit produced by the Environmental Protection Agency (EPA) only applies to aquatic applications of pesticides, meaning farmers are not covered by EPA’s pending permit, unless the application happens to end up in a “water of the United States” – itself an ill-defined legal term.

In that case, farmers could face potentially catastrophic financial liability. Fines for those found to be out of compliance could reach $37,500 a day – enough to put most producers out of business quickly.

The unclear regulations and permitting process also open farmers up to lawsuits from activists who have proven themselves hungry for court fights based on process issues.

Bill stalled

A bill to amend FIFRA and the Clean Water Act to clarify congressional intent and eliminate the requirement for additional permits for applications approved under FIFRA has passed the House of Representatives and the Senate Agriculture Committee, but remains stalled due to multiple holds by Democratic senators.

This week, Senate Agriculture Committee Ranking Member Pat Roberts, R-Kan., filed an amendment that would have attached the provisions of H.R. 872 to a pending bill on Chinese currency. Though the amendment was ultimately not chosen by leadership to move forward, the proposal was an important effort to add H.R. 872 to legislation that could move forward, showing the seriousness with which agriculture leaders in Congress are taking the deadline.

Earlier in the week, House Agriculture Committee Chairman Frank Lucas, R-Okla., also spoke out, urging a vote on H.R. 872 on the Senate floor.

Despite the seemingly partisan nature of recent moves, H.R. 872 has achieved widespread bipartisan and bicameral support from congressional leaders concerned about increasing regulation without environmental benefit and burdening government officials and farmers with new and complicated requirements in a time of tighter budgets.

It was approved in June by the Senate Agriculture Committee, without amendment and by a voice vote. It passed the House in March by a 292 to 130 vote.

NAWG continues to work with agriculture coalition partners and Members of Congress to determine a path forward for the legislation prior to the new requirements’ implementation.